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One common thread that runs through the horrific acts of violence in schools, workplaces, nightclubs and other public places seen in recent years is that the disturbed individuals who commit mass shootings often leave a digital trail warning of their intentions. A Dean Mead attorney cautions that there is growing sentiment to force internet and social media companies to be more proactive. Recently in his congressional testimony following the Cambridge Analytica scandal, Mark Zuckerberg repeatedly said, “We didn’t take a broad enough view of our responsibility,” and that it was a “big mistake.”
One troubling area is internet anonymity. Law enforcement sometimes hits a dead end investigating these threats when it finds they were posted anonymously, says David P. Hathaway, chair of Dean Mead’s Litigation Department. This creates a dilemma for law enforcement, as well as the companies that run internet service providers and social media platforms. Internet companies have neither the resources nor any legal obligation to monitor their users for criminal activity or to authenticate identities. At the same time, nobody would want to stand in the way of preventing another Parkland school or Pulse nightclub tragedy. The issue presents a difficult intersection of privacy, First Amendment freedoms and public safety.
One of Hathaway’s clients, an internet service provider, recently was contacted by law enforcement when an anonymous user posted threats to an online forum threatening to shoot up a school in Illinois. Because the poster had used widely available software to hide his identity – a practice the client’s web service allows – it was difficult to definitively link anyone to the threats. Fortunately, says Hathaway, the poster did not follow through on his threats, but he says the matter demonstrated the difficulty law enforcement and internet service providers encounter in policing the Wild West of the internet.
Since 1996, internet service providers, social media platforms and online publishers have been shielded from liability by Section 230 of the Communications Decency Act, which holds that they are not liable for speech that third parties post on their platforms, with several exceptions for intellectual property protection and knowingly enabling criminal transactions. This mostly hands-off approach to regulation has allowed the internet to thrive, but Hathaway says that internet service providers should not take this relative freedom for granted if the perception grows that they are creating online havens for criminal activity.
Congress or the Courts Could Walk Back Internet Freedoms
Two recent developments portend the possibility that Congress or the courts could dial back this laissez-faire approach, Hathaway says.
The first development is a spate of lawsuits against social media providers. The latest such lawsuit was filed in U.S. District Court in Orlando against Facebook, Twitter and Google for the shooting spree that left 49 people dead at Orlando’s Pulse nightclub on June 16, 2016. The lawsuit alleges that these social media sites bore responsibility for the tragedy because they allowed Islamic terrorists to use their sites to recruit and spread propaganda that motivated the Pulse shooter. As of 2014, there were 70,000 Twitter accounts linked to ISIS and its supporters, with 90 tweets every minute, according to the lawsuit. The Pulse shooter regularly accessed some of these accounts, the lawsuit says.
The lawsuit attempts to use the federal Anti-Terrorism Act, which makes it a crime to knowingly provide material support or resources to anyone who plans or carries out a terrorist act. The law also provides civil remedies for anyone harmed by terrorism, which is the basis of the lawsuit. In the past, this law has been used primarily against banks, but lawyers now are making the argument that giving terrorists unfettered access to social media to recruit and spread their message constitutes material support. In the matter Hathaway handled, the threats about a school shooting (specifying the school) were prosecuted as domestic terrorism, the second-highest level felony in Illinois after murder.
Courts Have Been Unsympathetic … So Far
The novel legal theory about providing material support through a social media platform has not been persuasive to judges, however. It has resulted in dismissals in at least three previous lawsuits, with the courts indicating firmly that the anti-terrorism law does not extend to this type of action.
Still, Hathaway says he is reminded of the tobacco product liability lawsuits, which went nowhere for decades and then eventually gained traction. While Hathaway certainly would not want to predict success with these lawsuits against social media platforms, he says it is worth observing that there is a serious effort to use the courts to force social media providers to police users who espouse violence. Even if the courts remain unsympathetic, Congress could address the issue.
The second development that might signal change is that on April 11, President Donald Trump signed into law a bill that carves out an exception to Section 230 of the Communications Decency Act. The Stop Enabling Sex Traffickers Act and Allow States and Victims to Fight Online Sex Trafficking Act amend the safe harbor of Section 230, making it illegal to accept sex trafficking advertising or to knowingly facilitate such activity. While the laws are believed to have significant enforcement and constitutional problems, both sailed through Congress with only a handful of no votes. Freedom of speech already has a number of defined exceptions that constitute illegal speech, a famous example of which is falsely shouting “fire” in a crowded theater.
Don’t Take Internet Freedom for Granted
The easy passage of these laws suggests that Section 230 is not sacrosanct, and threats of school violence or terrorism easily could become the next exception, Hathaway says. And while the Pulse plaintiffs’ attempt to use the anti-terrorism law may end up as only a law review footnote, it has given life to the idea that internet service companies and social media platforms should be held to a higher standard in monitoring their users.
These concerns come at a time when internet services are being criticized for security lapses that exposed their users’ data and for alleged political bias. Taken together, these developments create a perfect storm for those who would like to bring more regulation and liability exposure to the industry. Many years ago, airports might not have had a means to check every piece of luggage of each passenger for potential safety threats, but technology advanced, and the first federal airport security regulations were made effective in the 1970’s.
Now is the time for debate and consideration of possible new legislation in the area of internet policing. For example, the European Union’s enforcement of the General Data Protection Regulation (GDPR) that went into effect on May 25, 2018, is causing disruption even in the U.S., where web-based companies are asking their business partners to sign contracts guaranteeing compliance with GDPR. Hathaway says that internet companies should monitor these developments carefully and perhaps begin advancing their own ideas on how to balance public safety with First Amendment freedoms. Lawmakers and the public don’t want another Parkland or Pulse, and internet companies would be foolish to ignore their concern that the internet enabled these tragedies.